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Why Gowling WLG

Ontario announces significant workplace law reforms

Canada's human rights laws offer vital protection for individuals whose personal characteristics historically pose barriers to employment and full participation in society. They are a great outgrowth of Anglo-American principles of equity.

Seven days after releasing a report examining potential changes to workplace laws, the Government of Ontario has announced the first round of reforms based on that report. Saying that “we have to double down on our strong economy” Premier Wynne said, “to make real a vision of a fair Ontario” that rewards everyone, not just “the prosperous and the well-situated.”

Legislation is to be introduced in the Fall of 2017, taking effect at various times in 2018 and 2019. There are many changes to the Employment Standards Act (“ESA”), the most significant of-which target the temporary personnel industry.

The other major reforms to be enacted are within the Labour Relations Act (“LRA”). Those changes will make it much easier for non-unionized employees to unionize, and for unions to stay in place.

Gowling WLG is doing a detailed analysis of the changes announced by Premier Wynne, and plans a webinar in the coming days. In the interim, these appear to be the “headline changes” in today’s announcement:

Significant ESA Changes

The minimum wage will rise from $11.40 hourly to $14 in 2018, and to $15 in 2019.

Distinctions between wage rates among part-time, casual, temporary, seasonal and full-time workers will be eliminated. A principle of “equal pay for equal work” will apply. Wage differentials would be legal only based on seniority, merit, productivity or “other factors” to be determined.

Temporary help agency employees will be entitled to the same wages as the permanent employees at workplaces where they are temporarily assigned. They will also be entitled to one week’s notice of termination (or pay in lieu) of assignments lasting 3 months or longer.

Vacation pay will increase to 3 weeks (a 50% increase) for employees with five years’ or more tenure.

Independent contractors: individuals working for an employer will be presumed to be employees, unless the employer can prove that they are independent contractors.

Leaves: Personal emergency leave (PEL) would be available in all workplaces, of any size and would not be subject to a “sick note.” More PEL days would be available, 2 with pay. Family medical leave would be increased to 27 weeks in a 52 week period. Child bereavement and disappearance leave of 104 weeks would be created.

Easier employee complaints without notice to employers, and non-compliance penalties would be increased modestly.

Public shaming of employers found to have violated the ESA, by publication of their names, offenses and fines.

Significant LRA Changes

Easy union access to employee information: where a union can prove 20% support in its proposed bargaining unit, it can obtain employee lists and other information.

Card-based certification (no employee votes) in temporary help, building services, home care and community services industries.

Off-site voting, including telephone and electronic voting, on whether to unionize.

Automatic “remedial” certification if an employer is found to have contravened the Act.

“Just cause protection” during the period between certification and a first contract, and during the period between the legal strike date and a new collective agreement, an employer could not dismiss an employee without just cause.

Successor rights in the building services industry (cleaning, maintenance, security, etc) unions would have successor rights – automatically transferring to whatever company assumes a contract.

Successor rights when bidding for government contracts: the government could prescribe successor rights in situations where employers bid on “publicly funded contracted services.”

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